Wk2 - BusLaw

Legislative power

The power to make law, vested in the Federal Parliament under s1 of the Australian Constitution.

Federal Parliament composition

The Queen, the Senate, and the House of Representatives.

Bicameral

Consisting of two Houses of Parliament.

Parliamentary supremacy

Law made by Parliament prevails over any conflicting court decision; Parliament is the sovereign lawmaker.

3 features of parliamentary sovereignty

Not subject to any higher law; cannot bind future parliaments; no person can disobey a law made by Parliament.

House of Representatives

The Lower House; 150 electorates; the majority party forms government; the PM is a member of this House.

Senate

The Upper House; 12 senators per state + 2 per territory (76 total); protects smaller states and can veto legislation.

Bill

Draft legislation before it becomes law.

3 readings of a Bill

1) Title read & copies distributed, 2) Minister's speech + debate + committee stage (clause-by-clause analysis), 3) Vote - if passed, moves to the next House (or Royal Assent).

Royal Assent

The Governor-General's formal signing of a Bill that has passed both Houses, making it law.

When does an Act commence?

On the date stated in the Act, OR a date fixed by proclamation, OR (if silent) 28 days after Royal Assent.

Retrospective legislation

A law that applies to events before it was passed; Parliament can do this but rarely does (mainly to close tax loopholes).

Governor-General's role

Represents the Monarch, appointed on the PM's recommendation, gives Royal Assent, opens/closes Parliament.

Double dissolution

Under s57 of the Constitution, if the Upper House rejects a Bill twice (3+ months apart), the GG can dissolve both Houses and trigger a fresh election.

Joint sitting

If deadlock continues after a new Parliament is elected, the GG can convene both Houses to vote together.

Original Act

An Act passed on a particular matter for the first time.

Amendment Act

An Act that alters an existing (Original) Act.

Repealing Act

An Act that abolishes an existing Act.

Consolidating Act

An Act that combines all statute law in an area into one Act, repealing the old Original and Amendment Acts.

Reviving Act

An Act that restores a law that is no longer current.

How to cite legislation

Short Title + Year (italicised) + Jurisdiction (not italicised) — e.g. Wrongs Act 1958 (Vic).

Where to find Australian legislation online

www.austlii.edu.au (Australasian Legal Information Institute).

Judicial power

The power to interpret the law and apply it to resolve legal disputes; exercised by the courts.

Common law

The body of judge-made decisions; also called case law, judge-made law, or the general law.

Purpose of a court hierarchy

Allows a system of appeals, matches hearing type to the seriousness of the case, and enables the doctrine of precedent.

Jurisdiction

The scope of a court's authority — either geographical territory or subject matter (also original vs appellate, criminal vs civil).

Adversarial system

The common law dispute resolution system where parties control their own case within strict rules, and a judge (or jury) decides the outcome.

Negotiation

Informal, voluntary discussion between parties to reach a win-win compromise, with no third party involved.

Mediation

A neutral third party facilitates negotiation; non-binding/advisory and voluntary.

Arbitration

A neutral third party makes a binding decision; less formal, quicker, and more private than litigation.

Litigation

Formal court adjudication based on law; adversarial, binding, public, expensive, slower, and produces a binary win/lose outcome.

Primary legal materials

Case law and legislation — the only sources that count as actual legal authority (the law).

Secondary legal materials

Textbooks and journal articles — commentary on the law, not the law itself.

Why case law is a source of law

Cases apply the law to specific facts (giving certainty), allow courts to adapt law with flexibility, and fill gaps not covered by legislation.

Does legislation or case law prevail?

Legislation overrides case law — Parliament can change law developed by judges.

Binding precedent

A decision of a higher court in the same court hierarchy that a lower court must follow.

Persuasive precedent

A decision from outside the relevant court hierarchy (or obiter dicta) that a court may consider but is not obliged to follow.

Distinguishing a precedent

Arguing that due to a marked difference in facts or law, a precedent that would normally bind does not apply (without questioning its validity).

Overruling a precedent

A higher court rejecting/overturning a previous decision so it is no longer good law.

Stare decisis

Latin for "to stand by that which is decided" — the doctrine obligating courts to follow precedent set in similar past cases.

Ratio decidendi

The actual legal principle on which a court's decision was based — this part of the judgment is binding law.

Obiter dicta

Latin for "other things said" — comments made in passing in a judgment; persuasive only, never binding.

How to cite a case

Party v Party [Year] Volume Page — e.g. Donoghue v Stevenson [1932] AC 562 ('v' is pronounced "and," not "versus").

Where to find case law online

www.austlii.edu.au.

Literal Rule

Give the words of legislation their ordinary, technical, or dictionary meaning.

Golden Rule

If the literal rule produces an absurd result, the court finds a meaning that avoids the absurdity.

Contextual approach (elements)

Immediate context, the Act as a whole, other legislation, prior law, and the "mischief" being remedied.

Purpose Rule (purposive approach)

If the literal meaning is unclear, interpret the text according to the legislation's apparent purpose, often found in an objects clause.

Ejusdem generis (class rule)

General words following a list of specific words are limited to the same class as those specific words (e.g. "gin, brandy, whisky and other drinks" excludes tea).

Noscitur a sociis

A word's meaning is understood from (coloured by) the words surrounding it.

Generalia specialibus non derogant

Specific legal provisions override general ones.

Expressio unius est exclusio alterius

Expressly naming certain things impliedly excludes other things not named (e.g. "cars, utilities, panel vans, motorcycles & buses" excludes trucks).

Presumptions in statutory interpretation

Unless expressly stated, legislation is presumed not to: apply extra-territorially, be retrospective, override common law rights, or bind the Crown; words carry their current meaning.

IRAC method

Issue - Rule - Analysis/Application - Conclusion; a 4-step method for solving legal problems.

IRAC: Issue

Identify the legal question that needs to be answered.

IRAC: Rule

Identify the relevant legal rule(s) that apply.

IRAC: Analysis/Apply

Apply the legal rule(s) to the specific facts of the problem.

IRAC: Conclude

State the reasoned outcome/answer based on the analysis.